ASOCIACIÓN DE EDUCACIÓN PRIVADA DE PUERTO RICO, INC. PUERTO RICO INNOVATIVES EDUCATION SERVICES, INC., D/B/A COLEGIO TOMÁS ALVA EDISON CORPORACIÓN EDUCATIVA RAMÓN BARQUÍN, D/B/A

7/26/2019 ASOCIACIN DE EDUCACIN PRIVADA DE PUERTO RICO, INC. PUERTO RICO INNOVATIVES EDUCATION SERVICES, IN

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385 F.3d 81

ASOCIACIN DE EDUCACIN PRIVADA DE PUERTORICO, INC.; Puerto Rico Innovatives Education Services, Inc.,

d/b/a Colegio Toms Alva Edison; Corporacin Educativa

Ramn Barqun, d/b/a/ American Military Academy;Academia Inmaculada Concepcion-Mayaguez; SouthwesternEducational Society, Inc.; Guaman School, Inc.; Colegio

Adianez, Inc.; Antilles Military Academy, Inc.; FundacinEducativa Concepcin Martn, Inc., d/b/a/ Sonifel; SaintFrancis School, Inc.; American School, Inc., Plaintiffs,

Appellants,

v.Javier A. ECHEVARRA-VARGAS, in his official capacity as

Secretary of the Department of Consumer Affairs of theCommonwealth of Puerto Rico, Defendant, Appellee.

No. 03-2703.

United States Court of Appeals, First Circuit.Heard May 3, 2004.

Decided October 5, 2004.

Appeal from the United States District Court for the District of Puerto

Rico, Hctor M. Laffitte, J.

Antonio J. Amadeo-Murga, with whom Wanda I. Concepcion-Figueroa

and Luis Roberto Pinero were on brief, for appellants.

Camelia Fernandez-Romeu, Assistant Solicitor General, with whom

Roberto J. Sanchez-Ramos, Solicitor General, and Kenneth Pamias-

Velazquez, Deputy Solicitor General, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.


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I.

1 Asociacin de Educacin Privada de Puerto Rico, Inc., a nonprofit private

association representing the interests of private primary, secondary, and post-

secondary member schools in Puerto Rico, together with individual schools,

filed a complaint on March 3, 2003, against the Secretary of the Department of

Consumer Affairs of Puerto Rico ("DACO"). The complaint alleges that

DACO's Regulation 6458, Regulations for the Disclosure of Information on the

Sale and Distribution of Textbooks ("Reglamento para la Divulgacion deInformacion en la Venta y Distribucion de Libros de Texto") (the

"Regulation"), violates the plaintiffs' First Amendment rights, and in particular,

their right to academic freedom. The plaintiffs sought declaratory and

injunctive relief.

2 The Secretary moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for

failure to state a claim, and the district court granted the motion. The plaintiffs

appeal that dismissal. We reverse the dismissal and remand the case to thedistrict court for further proceedings.

3 The private schools of Puerto Rico are required by statute to operate under a

license. 18 P.R. Laws Ann. 2111. Puerto Rico's Secretary of Education is

directed to "establish the standards and the requirements that shall be met by the

educational institutions that request a license." 18 P.R. Laws Ann. 2113. TheSecretary of Education's power to regulate the schools is subject to a proviso

protecting the schools' authority to develop their academic programs.1

4 Nonethless, DACO's Secretary has also asserted authority. DACO promulgated

the Regulation in 2002. As its stated main objective, the Regulation aims to

"protect[ ] Puerto Rican famil[ies] and parents, and/or tutors who register their

minor children and/or wards in the private schools of Puerto Rico." Reg. 6458,

R. 2. "Likewise, it is the intent to define the obligations and responsibilities ofschools, bookstores, distributors, and publishing houses in relation to the

corresponding processes pertaining to the sale of textbooks."Id.

5 The Regulation imposes several obligations on the schools. Rule 8 directs a

school to announce, by May 15 of the current school year, what books will be

used the following school year.Id.R. 8(A). Rule 9 specifies that schools must

disclose final sales prices for the books and the agreement with the book seller.

Id.R. 9(A). Rule 10 requires the schools to inform parents of price changes. Id.R. 10.

6 The s ecific rovision challen ed b the laintiffs is found in Rule 11 of the


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II.

Regulation:

7 In the case which [sic] there are changes in the edition, the school will inform

in the book list which of these books have different editions, what the change

specifically consists of, and whether it is a significant change or not, as defined

by these regulations. In case that the changes are not significant, the school has

to inform the parents on said list, that they have the option of buying theprevious edition.

8 Id.R. 11. "Significant change in the new edition of a book" is defined in turn

by Rule 4(A) as "historical, technological, scientific and/or cultural changes

integrated in the new edition of a book that are significant and as such cause the

total or partial revision of one or several chapters or sections and/or the

inclusion of one or several chapters or sections."Id.R. 4(A). In contrast, "[t]he

exclusion of chapters or sections, cosmetic changes and/or style, such as cover

changes, chapter or section order, book texture and/or material does not

constitute a significant change."Id."Additions of one or several sentences to

one chapter or section or through a new book edition will not be considered a

significant change nor the addition of one or several drawings, graphics, tables,

or photos."Id.There is no explicit provision for resolving disputes between the

Secretary and a school over whether a particular edition contains a "significant

change."

9 Rule 12 requires schools to disclose to parents the existence and applicability of

the Regulation.Id.R. 12. Schools must post a notice, in a sign not smaller than

eight and a half inches by eleven inches, with a letter size not smaller than 22

points, not more than five feet away from a spot to which parents can have

visual access, and between five and six feet from the ground, with the following

language (in Spanish):

10 This school has the obligation to inform parents the pertinent process for book

sale and distribution in accordance with theRegulations for the Release of

Information about the Sale and Distribution of Textbooksof DACO. A copy of

these regulations is available in our library. Not complying with the rules set

forth in said regulations could lead to the levying of administrative fines in

accordance with the DACO Organic Law.

11 Id.Thus, the Regulation is enforced with fines, and under the DACO OrganicLaw such fines can amount to $10,000.2See id.R. 18.


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III.

12 The district court, on the basis of the pleadings and without hearing evidence,

determined that Rule 11 implicated plaintiffs' First Amendment interests and

should be scrutinized as a time, place or manner restriction.Asoc. de Educ.

Privada de Puerto Rico v. Echevarria Vargas,289 F.Supp.2d 1, 4

(D.P.R.2003).

13 In doing so, the district court rejected the plaintiffs' contention that Rule 11 wasa content-based restriction deserving of strict scrutiny, finding that "DACO's

regulations only limit the manner in which the school curriculum is taught."Id.

It analyzed the regulation's constitutionality under the intermediate scrutiny

standard utilized in public forum cases.3

14 The district court concluded, on the pleadings, that Puerto Rico had "a

significant interest in ensuring that parents do not unnecessarily pay for

textbooks that contain stylistic changes."Id."Moreover, [the district court]believe[d] that the regulations do provide ample alternative channels of

communication."Id.The court suggested that schools may persuade parents to

purchase exclusively the latest editions of the books and noted, without

mentioning federal copyright laws, a teacher's capacity to photocopy the

changes missing in the older editions for those children whose parents chose

not to purchase new editions.Id.

15 After addressing and rejecting the plaintiffs' argument that the government's

interference with education called for stricter scrutiny, the district court held, on

the Secretary's Rule 12(b)(6) motion, that the Regulation was constitutional;

thus, the plaintiffs failed to state a claim. We reverse the district court's

dismissal of the claim.

16 "A dismissal on the pleadings will be upheld only if it appears beyond doubt

that the plaintiff can prove no set of facts in support of its claims which would

entitle it to relief." Gaskell v. Harvard Coop. Soc'y,3 F.3d 495, 497-98 (1st

Cir.1993) (internal quotation marks, citations, and brackets omitted). At this

stage, we cannot say that there are nopossible set of facts on which the

Regulation as implemented would be unconstitutional.

17 Plaintiffs' claim purports to rest primarily on a First Amendment right to

protection of academic freedom, as well as on protection of a right to free

speech. The parties agree that Puerto Rico is bound by the First Amendment.

See Torres v. Puerto Rico,442 U.S. 465, 469, 99 S.Ct. 2425, 61 L.Ed.2d 1


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(1979).

18 The complaint is not precise about what free speech rights are involved here.

The Regulation does not purport to address the content of speech; nor does it

purport to regulate speech at all. Rather, the Regulation is a consumer

protection regulation. As this court noted in Cuesnongle v. Ramos,835 F.2d

1486 (1st Cir.1987), involving another DACO regulation, a private school hasno First Amendment right to be free of consumer protection regulations.Id.at

1502. Further, Cuesnonglerecognized the power of the government to some

extent to compel disclosure of matters not harming associational or speech

rights.Id.That is far from saying that plaintiffs here could not produce facts in

support of a claim under the First Amendment.

19 More directly, the complaint asserts abridgment of academic freedom.

"Academic freedom" receives some protection under the First Amendment andplaintiffs' complaint seeks the shelter of that protection. The term "academic

freedom" means many things and protects many different interests. A number

of those interests are plainly not at issue in this case.4And this case does not

involve any direct infringement.

20 Still, "[t]hat the burden of which the [petitioner] complains is neither content-

based nor direct does not necessarily mean that petitioner has no valid First

Amendment claim." Univ. of Penn. v. EEOC,493 U.S. 182, 199, 110 S.Ct. 577,

107 L.Ed.2d 571 (1990). Content-neutral governmental action may,

nonetheless, have effects on academic freedom. And "burdens that are less than

direct may sometimes pose First Amendment concerns."Id.

21 From a reading of plaintiffs' complaint we have tried to identify the burdens

which plaintiffs assert the Regulation imposes. Plaintiffs assert that the

Regulation burdens the academic freedom of the schools and their teachers by

1) interfering with the right of the schools and their teachers to choose the

textbooks they would like to use by means of restrictions such as requiring

schools to disclose to parents, months in advance, the textbooks that would be

used and the details of the book purchase contracts, 2) forcing the schools and

teachers to accept and adapt to the use of different editions of a textbook in the

same classroom (which might be described as a "Tower of Babel" situation),

and 3) giving the Secretary of DACO the power to determine what constitutes a

"significant" change between editions differently than what a school

determines. As the plaintiffs remind us, the restrictions may be enforced with

up to $10,000.00 in administrative fines.

We cannot sa in the absence of an evidence about the nature and wei ht of


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,

the burdens imposed and the nature and strength of the government's

justifications, that plaintiffs have no possible claims. As such, the grant of the

Rule 12(b)(6) motion was error. The parties on remand will have the

opportunity to develop the facts needed to clarify these issues.

23 For example, by analogy to the academic freedom interests articulated by

Justice Frankfurter, concurring in Sweezy v. New Hampshire,354 U.S. 234,

255, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957), there are no facts as of yet on

whether there has been any interference with the schools' ability to make their

own decisions about "what may be taught" and "how it shall be taught."Id.at

263, 77 S.Ct. 1203 (internal quotations omitted).

24 There are simply no facts in the record about how the Regulation has been

implemented, much less the burdens and benefits which have ensued. Therecord does not tell us how textbooks are used in private schools in Puerto Rico

or when editions would normally be selected. Perhaps textbooks are little used;

many schools today use reproduced copies of particular pages of text, often not

from textbooks at all. There are no facts about the experience of private schools

with substantive changes in different editions of the same textbooks. There are

no facts about the actual effect in the classroom of using two fairly similar

versions of the same textbook.

25 It may be, for example, that most teachers in Puerto Rico private schools only

assign readings in textbooks as homework and do so by referring to chapters

that cover specified subjects. If such is the case, the plaintiffs' allegations about

"Tower of Babel" effects in the teaching in classrooms would be weakened.

Conversely, if teachers make frequent references to specified textbook pages

during classroom instruction and different editions are used within the same

classroom, that concern may be strengthened.

26 Nor does the record show how often new editions of textbooks are produced or

how often students in the same classroom are actually using different editions

of a textbook. There are no facts on the availability of old editions for purchase

(new or used) when new editions are released.

27 There are no facts of record on whether new editions are forced on teachers

who feel they are unnecessary. If that is so, the Regulation may have the

benefit of giving schools bargaining power with publishers and lowering theoverall costs of new textbooks.

There are also no facts of record on whether the Secretary and a private school


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have ever disagreed on whether there was a significant change between

editions. Nor are there facts of record about the precise nature and extent of the

problem which the Regulation purports to address. There are no facts in the

record about the particular role of private schools in Puerto Rico that may give

the government a greater interest in the costs of textbooks for parents.

Assuming there are cognizable burdens, there are no facts as to whether

alternative, less intrusive, regulatory schemes would work just as well to satisfyany legitimate state interests.

29 The private school community of Puerto Rico embraces many schools, areas,

levels, teachers, and 175,000 students. There may be a wide range and variety

among them in textbook usage. But there are no facts in the record which we

can examine to determine how wide spread may be any impact of the

Regulation on the First Amendment concerns asserted by the plaintiffs. The

Regulation has been in effect since May 2002, so answers to these inquiriesshould be available.

30 Where the challenged regulation is indirect and content-neutral, the question of

whether the incidental burdens on speech or academic freedom trigger a First

Amendment claim is a fact-sensitive one.5See Univ. of Penn.,493 U.S. at 201-

02, 110 S.Ct. 577 (holding that plaintiff university failed to make out a

cognizable First Amendment claim in light of speculative, attenuated, and

remote harm); Ohio Assoc. of Independent Schools v. Goff,92 F.3d 419, 424(6th Cir.1996) (determining whether plaintiff had asserted an actionable First

Amendment claim of denial of academic freedom only after development of

facts); Cuesnongle,835 F.2d at 1489-90 (same). Accordingly, the proper

disposition of the case at this stage is to reverse the dismissal and remand for

further proceedings to develop the factual record.

31 On remand, the facts may show no infringement of any interests protected by

the First Amendment, as was the case in Univ. of Penn.,493 U.S. at 201-02,110 S.Ct. 577. Yet the facts may show some significant infringement. If so,

First Amendment analysis typically involves weighing the substantiality of the

government's interests relative to the First Amendment burdens imposed and

the availability of alternate means to accomplish the governmental objectives.

The parties should brief to the district court the exact nature of the First

Amendment issues at stake based on the evidence, including the appropriate

standard of review. We agree with the district court that strict scrutiny is not

appropriate on the case as framed; we disagree that plaintiffs' pleadings presentno possible claims.6And we disagree that the government's interests self-

evidently trump any First Amendment interests which have been burdened.


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Notes:

"The license to be issued by the Secretary by virtue of this subchapter will be

institutional in nature and shall include the authorization to issue diplomas,

certificates or degrees up to the maximum academic level established in the

licenseProvided,[t]hat a private educational institution, by virtue of the license

issued, and pursuant to academic autonomy this chapter provides, protects and

fosters, may establish new academic programs, additional courses or any other

academic measure, provided the same does not exceed the maximum academic

level authorized by the license, nor modifies its institutional objectives ormission." 18 P.R. Laws Ann. 2117 (emphasis added).

In contrast, "[a]ny natural or juridical person who operates a private educational

institution as defined in this subchapter without the proper license provided

therein shall be guilty of a misdemeanor and, upon conviction thereof, shall be

punished with a fine not to exceed five hundred (500) dollars." 18 P.R. Laws

Ann. 2124

"[E]ven in a public forum the government may impose reasonable restrictionson the time, place, or manner of protected speech, provided the restrictions `are

justified [1] without reference to the content of the regulated speech, [2] that

they are narrowly tailored to [3] serve a significant governmental interest, and

[4] that they leave open ample alternative channels for communication of the

information.'"See Ward v. Rock Against Racism,491 U.S. 781, 791, 109 S.Ct.

2746, 105 L.Ed.2d 661 (1989) (quoting Clark v. Community for Creative Non-

Violence,468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984))

This case does not involve the freedom of parents to direct the upbringing of

their childrenSee Pierce v. Soc'y of Sisters,268 U.S. 510, 534-35, 45 S.Ct. 571,

69 L.Ed. 1070 (1925) (parents have a liberty interest in directing the upbringing

and education of their children). Nor is the Regulation an effort by the

government to control or direct the content of speech engaged in by a university

or those affiliated with it. See Sweezy v. New Hampshire,354 U.S. 234, 250, 77

S.Ct. 1203, 1 L.Ed.2d 1311 (1957) (government violated academic freedom of

university professor by compelling disclosure of contents of lecture);Keyishianv. Board of Regents,385 U.S. 589, 603-04, 87 S.Ct. 675, 17 L.Ed.2d 629

(1967) (law compelling loyalty oath violated academic freedom of university

professors).

32 We reversethe dismissal under Rule 12(b)(6) and remandfor further

proceedings not inconsistent with this opinion. So ordered.

1

2

3

4


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The district court analyzed the Regulation as a time, place, and manner

restriction on speech and applied intermediate scrutiny. Without passing on the

correctness of that analysis, we believe it is wiser to defer the determination of

what standard of review to apply until the case, and the nature of the First

Amendment burdens, if any, have been clarified through more factual

development

The only issue squarely before us on appeal is whether the district court erred

in granting the Rule 12(b)(6) motion

5

6

33 TORRUELLA, Circuit Judge, dissenting.

34 The regulation being challenged in this case is a bizarre and draconian measure.

On its face it constitutes a major infringement on the academic freedom of

appellant educational institutions, as guaranteed by the First Amendment of theConstitution.Regents of the Univ. of Cal. v. Bakke,438 U.S. 265, 312, 98 S.Ct.

2733, 57 L.Ed.2d 750 (1978) (Powell, J., concurring) ("[a]cademic freedom ...

long has been viewed as a special concern of the First Amendment"). To my

knowledge, this regulation is unique in the annals of United States jurisdictions;

appellees have not pointed to any similar legislation or authorization showing

otherwise.

35 Of course, it is not this stamp of originality that causes the actions of theGovernment of Puerto Rico to infringe upon appellants' constitutional rights,

but rather the subject matter that it attempts to regulate and the manner in which

its authority is exercised over private academic institutions. See id.(among the

four components of academic freedom are "whatmay be taught, [and] howit

shall be taught") (emphasis added) (Frankfurter, J. concurring in the result)

(quoting Sweezy v. New Hampshire,354 U.S. 234, 263, 77 S.Ct. 1203, 1

L.Ed.2d 1311 (1957)). A casual reading of the offending regulation serves to

illustrate the point.1

36 The general objective of the regulation as stated in itsRule 2is "protecting

Puerto Rican family and parents ... who register their minor children in the

private schools of Puerto Rico" by defining the "obligations and responsibilities

of schools, books stores, distributors, and publishing houses in relation to the

corresponding processes pertaining to the sale of textbooks." Although this is

an ostensibly valid, if paternalistic, exercise of Puerto Rico's police powers,see

Cuesnongle v. Ramos,835 F.2d 1486 (1st Cir.1987) (a private school has noFirst Amendment right to be free of consumer protection regulations), one

wonders why the state should interject itself into this aspect of a purely

voluntary relationship inherent in private schooling, one which is merely a facet


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of choosing to pay for what is otherwise freely provided by the body politic.

However, although the challenged regulation may be externally directed at

consumer protection, it clearly transgresses into the area of howprivate schools

and their alter egos, the teachers, are to teach, as well as the subject matter of

whatthey can teach. This is quintessential interference with academic freedom,

and "[t]he vigilant protection of constitutional freedoms is nowhere more vital

than in the community of American schools." Shelton v. Tucker,364 U.S. 479,487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

37 A brief perusal of the various parts of the regulation, taken in context, clearly

reveals how it interferes with the how and what of academic freedom, without

need for further inquiry.Rule 8,a provision at the heart of this controversy,

requires all private schools to "announce the books that will be used the next

school year on or before May 15 of the previous school year, if this school year

starts on August" (or a similar three month interval if it is other than August).This must be done by posting the information on a bulletin board located in a

conspicuous place in the educational institution, and by contemporaneously

providing the list to the Government and to the parents. The parents' list must

contain "a briefing on the book, its title, author, publishing house, edition, and

publishing year."

38 Concomitant with these provisions isRule 11which states that where there are

"changes in the edition, the school will inform in the book list which of thesebooks have different editions, what the changes specifically consists of, and

whether it is a significant change or not," in which case the "school has to

inform the parents ... that they have the option of buying the previous edition."

The term "significant change" is defined byRule 4(A)as

39 changes integrated in the new edition of a book that are significant and as such

cause the total or partial revision of one or several chapters or sections. The

exclusion of chapters or sections, ... [or changes in] chapter or section order ...do[ ] not constitute a significant change. Additions of one or several sentences

to one chapter or section or through a new book edition will not be considered a


or photos.

40 Rule 12,on the other hand, requires all schools to disclose and notify parents

and persons interested in enrolling their children of "the school policy regarding

the addition, changes and modifications of the textbook list", and mandates the

posting of a sign in the school, which must be at least 8 and 1/2 by 11 inches in

size with lettering no smaller than 22 points, spelling out the school's

obligations under the regulation and indicating the possibility of administrative


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fines in case of violations. UnderRule 18,these fines can be imposed against "

[a]ny natural [ie., including individual teachers] or legal person", and can be as

high as $10,000, a not insubstantial figure, particularly for a teacher.

41 In my view, the gross intrusion that this regulation exerts upon the academic

environment cannot be underestimated, nor does it, in my opinion, need any

further proof than its mere existence. Its chilling effect upon constitutionallyprotected activity is self-evident. Rule 8 requires that a legally binding decision

as to the academic content of a constitutive component of teaching the books

be made by teachers and/or the teaching institution long before the academic

year commences. This is followed by an elaborate bureaucratic policing

mechanism which is not only highly intrusive, but is also highly intimidating.

Compounding this arctic environment, the standard for compliance as

evidenced by the definition of what constitutes a "significant change" in the text

of the school books is vague, confusing and contradictory beyondredemption. Thus, the regulation unavoidably interjects the state into dictating

the content of what academia may deem to be the appropriate subject matter

and method of teaching.

42 With due respect, I find the majority's proposed inquiry into the status of the

school books in Puerto Rico's private schools to be somewhat puzzling and

disconcerting. SeeMaj. op. at 11-13. At the very least, it would appear that

there is some use of school books by private schools in Puerto Rico, otherwisethe Government would not attempt to regulate their use. Furthermore, it is self-

evident that simultaneous use of two different texts in or out of the classroom is,

at a minimum, academically and pedagogically disruptive. What is to be gained

from the line of inquisition mapped by the majority is beyond my

comprehension. Moreover, with due respect, under the circumstances before us,

in which we are presented with a live case and controversy (i.e., enforcement of

an extant regulation), the majority's approach appears to be an unnecessary

exercise and a waste of judicial resources.2Nor does Univ. of Penn. v. EEOC,493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) a case which is

factually and qualitatively distinguishable from the present circumstances

demand the inquiries mandated by the majority. In all probability, teachers

faced with a figurative overhanging ax for violating this extreme measure

would adapt to the regulation and endure its resulting academic babel. But this

argument completely misses the point. The constitutional intrusion emanates

from their being required to do so.

43 That teachers can be forced to deliver lessons in a clearly different, and in my

opinion, obviously deficient, academic environment does not weigh against the

reality of the First Amendment incursion that such action constitutes, and no


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APPENDIX A

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT

VIEWABLE NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT

IS NOT VIEWABLE PRS ADC DACO REG. 6458, Reg. 6458-Regulations for the

Disclosure of Information on the Sale and Distribution of Textbooks

*2445 P.R. Regs. DACO REG. 6458

This database contains regulations received until December 15, 2003.

Reg. 6458 Regulations for the Disclosure of Information on the Sale and

Distribution of Textbooks

I.

GENERAL GUIDELINES

amount of inquiry can change the reality of the regulation's text and its patent

restrictions on academic freedom. Any other "analysis turns the First

Amendment upside down."Ashcroft v. Free Speech Coalition,535 U.S. 234,

255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (Kennedy, J. concurring).

44 Puerto Rico, through an agency whose competency lies in consumer affairs, not

education, has interfered with conduct protected by the First Amendment. Withrespect, I believe we should so declare and I therefore dissent.

45

46

47 REGULATIONS OF PUERTO RICO DEPARTMENT OF CONSUMER

AFFAIRS (DACO, according to its Spanish acronym) REG.6458-

REGULATIONS FOR THE DISCLOSURE OF INFORMATION ON THE

SALE AND DISTRIBUTION OF TEXTBOOKS

48

RULE 1 LEGAL BASE

49 These regulations is adopted according to the powers conferred to the

Secretary of the Department of Consumer Affairs as granted by Act Number 5

of April 23, 1973, as amended; and in accordance with Act Number 170 of

August 12, 1988, as amended.

RULE 2 GENERAL OBJECTIVES

50 These regulations have the main objective of protecting Puerto Rican family


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and parents, and /or tutors who register their minor children and/or wards in the

private schools of Puerto Rico. Likewise, it is the intent to define the

obligations and responsibilities of schools, bookstores, distributors, and

publishing houses in relation to the corresponding processes pertaining to the

sale of textbooks. Furthermore, the powers of the Department of Consumer

Affairs are clarified, and the procedures and sanctions applicable to those who

do not comply with the regulations are established.

RULE 3 INTERPRETATION

51 (A) These regulations must be interpreted liberally in favor of consumers and in

order to comply with the mandates of ACT Number 5,supra

52 (B) In case of discrepancies between the original text in Spanish and theEnglish translation, the Spanish text will prevail.

53 (C) The words and phrases used in these regulations will be interpreted

according to the context in which they have been used and their meaning will

be according to normal everyday usage.

54 (D) In applicable cases, the words used in the present tense also include the

future tense; those used in the masculine gender include the feminine; thesingular will include the plural and the plural will include the singular.

55 (E) The guidelines in these regulations will be interpreted in a way in which the

public policy of the Commonwealth of Puerto Rico to foment and respect

educational diversity as consigned by Act Number 49 of June 30, 1988 is not

compromised in any way.

RULE 4 DEFINITIONS

56 TRANSLATOR'S NOTE: The following terms appear in alphabetical order in

the original document, but fall out of the same when translated.

57 Unless otherwise stated, the following terms will have the meaning given to

them herein:

58 *2446 (A) Significant change in the new edition of a book historical,

technological, scientific and/or cultural changes integrated in the new edition of

a book that are significant and as such cause the total or partial revision of one


14/21

or several chapters or sections and/or the inclusion of one or several chapters or

sections. The exclusion of chapters or sections, cosmetic changes and/or style,

such as cover changes, chapter or section order, book texture and/or material

does not constitute a significant change. Additions of one or several sentences to

one chapter or section or through a new book edition will not be considered a


or photos.

59 (B) Publishing house Natural person or legal person that edits a piece of

work and/or book, covering publishing expenses and administering it

commercially.

60 (C) Contract all agreements, be it understood or work agreement, between a

school and a distributor or bookstore or publishing house, be it oral or written,

to coordinate the sales of books through a specific distributor, bookstore orpublishing house; to grant the exclusive sale at the school through a specific

distributor, bookstore or publishing house; to grant time and space in favor of a

specific distributor, bookstore or publishing house for the purpose of selling

books; or to preferably recommend the acquisition of books with a specific

distributor, bookstore, or publishing house.

61 (D) Department or DACO Department of Consumer Affairs.

62 (E) Distributor all natural or legal persons dedicated to the distribution of

textbooks or one who supplies to bookstores, even if said person works with

retail sales, as well

63 (F) School all private institutions, for-profit or not-for-profit, religious or

secular, dedicated to preschool, elementary, middle and high school education

or special education, within the territorial boundaries of the Commonwealth ofPuerto Rico.

64 (G) Bookstore all natural or legal persons dedicated to the retail sales of

books, even, on a minor scale, supplies books to other businesses dedicated to

book sales, as well.

65 (H) Book all textbooks, dictionaries, reference books, handbooks,

pamphlets, or study materials required or suggested by a school for the use oftheir academic programs and/or curricula.

66 (I) Parents fathers, mothers, legal guardians, or any other persons who are


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II.

OBLIGATIONS AND RESPONSIBILITIES OF THE SCHOOL

responsible of the scholastic or academic life of a student.

67 (J) Secretary the Secretary of the Department of Consumer Affairs.

RULE 5 COMPLIANCE WITH WORK DAY

68 It is expressly stated that all affirmative action required for a determined date

by these regulations from a school, distributor, bookstore and/or publishing

house will be transferred to the next work day if said date is on a weekend or

holiday.

RULE 6 PROHIBITION

69 No distributor or bookstore or publishing house that is an exclusive distributor,producer, printer or editor of a selected book to be used by a school, may refuse

to provide other distributors or bookstores a reasonable amount of copies at the

prices usually applicable to wholesale.

70 *2447 RULE 7 BURDEN OF PROOF

71 It is expressly stated that any person and/or person to whom these regulations

require the compliance of a determined affirmative action or obligation will

have the burden of proof that in effect said person complied to the specific acts

as stipulated by these regulations.

72 RULE 8 Obligation to provide a list of books to parents and to the

Department

73 (A) All schools should announce the books that will be used the next school

year on or before May 15 of the previous school year, if this school year starts

on August or an equivalent month if the school year starts on a different month.

74 (B) The announcement will be done in a form prepared by the school itself andshould be posted on a bulletin board in a conspicuous place in the educational

institution.


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75 (C) Also, this list will be provided on or before the date previously indicated to

the Department and, to the parents, through the students themselves or attached

to any communication that reaches the parents effectively on or before the

required date, as stipulated by this rule.

76 (D) The list that will be sent to all parents will include the title of the books forthe grade or grades their children will study during the next school year and

this information shall include a briefing on the book, its title, author, publishing

house, edition, and publishing year.

77 RULE 9 Obligation to provide a booklist with their final sale price to parents

and the Department

78 (A) In the case that the school has reached a contract agreement with a specificdistributor, bookstore and/or a publishing house, the school has to inform on

said situation to parents on a bulletin board located in a highly-conspicuous

place, and in the form handed out by the school to the parents including

booklist and that the contract is available to be examined by the parents, should

the agreement be a written contract.

79 (B) Moreover, the school will inform, in the same bulletin board and in the

same form, that said agreement or contract will in no way infringe on theparents' right to buy the books in other bookstores, and/or via other distributors

or publishing houses.

80 (C) Schools must submit to the Department a copy of said contracts within five

(5) days of their granting, when these are written.

81 (D) The school must place the booklist, including a full review, the title of the

book, author, publishing house, edition, publication year, and the final sale

price in a highly-conspicuous bulletin board no later than May 15 prior to the

start of the school year, if said year starts in August; or on an equivalent month

if the school year starts on a different month.

82 *2448 (E) Said book list, including final sale prices of books, will be submitted

to the Department and to the parents on or before the May 15, prior to the start

of the school year, if said year starts in August or on an equivalent month if theschool year starts on a different month. Providing the list to the parents should

be done through the students themselves or attached to any communication

which would effectively reach the parent on or before the date required by this


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rule.

83RULE 10 Obligation of informing the final sale price and corrections

84 The sale price required by these regulations to be disclosed shall be final. Price

corrections affecting this list will be divulged to parents via the bulletin board

in the most conspicuous place, by the students, or by mail within ten (10)

calendar days from the time when the list was handed to the parents.

85 RULE 11 Obligation of informing changes in the edition

86 In the case which there are changes in the edition, the school will inform in the

book list which of these books have different editions, what the change

specifically consists of, and whether it is a significant change or not, as definedby these regulations. In case that the changes are not significant, the school has

to inform the parents on said list, that they have the option of buying the

previous edition.

87 RULE 12 Obligation to disclose information to parents regarding school

policy on textbooks an on these regulations.

88 All schools must disclose and notify parents, and/or any person interested inenrolling children in said school of the school policy regarding the addition,

changes and modification of the textbook list. Furthermore, the school must

have a copy of these regulations available in the school library.

89 The school must announce a sign in a visible location and with legible letters

the following statement:

90 "This school has the obligation to inform parents the pertinent process for book

sale and distribution in accordance with theRegulations for the Release of

Information About the Sale and Distribution of Textbooksof DACO. A copy of

these regulations is available in our library. Not complying with the rules set

forth in said regulations could lead to the levying of administrative fines in

accordance with the DACO Organic Law."

91 Said sign should not be smaller than eight and a half inches (8 1/2) by 11 inches(11) with a letter size no smaller than twenty-two (22) points.

92 The material to be used could be plastic, acrylic, or any other material that is


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*2449 III.

Obligations and Responsibilities of the Distributor, Bookstore and/or Publishing

House

not susceptible to deterioration.

93 All signs should be exposed in a visible area, which could include the main

entrance, the bulletin board, or the school's reception area, among others. Said

sign cannot be placed more than five (5) feet away from the spot where parents

would have visual access to it. Furthermore, the sign should be placed between

five (5) and six (6) feet from the ground.

94

95

96 RULE 13 Obligation to provide to the school and the Department the book

list with final sale prices

97 Every time a school and a distributor or bookstore or publishing house agree on

or enter a contract, said distributor or bookstore or publishing house must give

the school and the Department, no later than April 15 prior to the start of the

school year, in case that the school year starts in August, or an equivalent

month should the school year start on a different month, a list indicating the

final sale price of the books to be sold by said distributor, or bookstore, or

publishing house. The distributor, bookstore or publishing house must submit,free of charge, a copy of said list to parents, students or anyone who requests it,

be it in person, by phone or in writing.

98 RULE 14 Obligation to inform the school on changes in book editions

99 Any bookstore, distributor or publishing house that has a contract with a school

must inform the school in the aforementioned list, and within the set time

frame, which books changed edition, what the change consists of, and whether

this change is significant or not, as defined in these regulations.

100 RULE 15 Obligation to inform the school of mistakes and/or price

corrections

101 Any bookstore, distributor and/or publishing house that has a contract with a

school must inform said school of any error and/or correction to the book listprices within ten (10) calendar days, starting from the date this list was

provided to the school.


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IV.

VIOLATIONS AND PENALTIES

V.

102 If the school is not informed about these errors and/or corrections as herein

required, the bookstore, distributor and/or publishing house must honor the

final price informed in the list or the two prices.

103 RULE 16 Increase in the Prices Informed on the Book List

104 The distributor, bookstore and/or publishing house that has a contract with the

school cannot increase the prices informed on the book list, unless it mediates a

direct authorization from DACO. To this effect, the distributor, bookstore

and/or publishing house should present a written application form before

DACO's Division of Economic Studies accompanied with sufficient and

truthful evidence to back said application.

105 *2450 RULE 17 Book Availability

106 The bookstore, distributor or publishing house that has a contract with the

school must make available for sale the books mentioned in the list with

enough amounts to respond to the anticipated demand based upon the

enrollment of students determined by the school for each grade.

RULE 18 Penalties

107 Any natural or legal person, who violates any rule in these regulations, does not

comply with the obligation that these regulations imposes or fails to comply

with any order issued by the Secretary of this Department in virtue of what has

been disposed in these regulations, will be exposed to set administrativepenalties and sanctions which include the imposition of fines of no more than

$10,000.00, according to Act Number 5 of April 23, 1973, as amended.

RULE 19 Corrective Action

108 Given the high public interest that implies the fact that parents obtain the

information provided in these regulations no later than the above mentioneddates, the Department can take any corrective action as authorized by this Act

and/or regulations by their own initiative without the need to file a complaint.


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MISCELLANEOUS PROVISIONS

RULE 20 Disclaimer

109 If any provisions of these regulations were to be declared unconstitutional or

illegal by a competent jurisdictional court, said determination will neither affect

nor invalidate the rest of these regulations, but instead the effect will be limited

to the part, article, paragraph, or clause that would have been declared

unconstitutional or illegal.

RULE 21 Consumer Protections

110 Nothing of what has been set forth in these regulations shall keep the Secretary

of DACO from applying the powers and faculties conferred to him, or her, bythe Organic Law which protects consumers, or stop him, or her, from carrying

out his, or her, duties.

111 RULE 22 Repealing Clause The Regulations for the Disclosure of

Information on the Sale and Distribution of Textbooks are herein repealed.

Approved on February 19, 1992, File No. 4635 at the Department of State.

Rule 23 Effect

112 These regulations shall take effect immediately upon its approval by the

Secretary of State.

In San Juan, Puerto Rico on May 1, 2002

113 Fernando L. Torres Ramirez, Esq.

Secretary

114 Copyright 2004 West, a Thomson business. No claim to original U.S. Govt.

works.

TRANSLATOR'S NOTE:

115 The following information:PRS ADC DACO REG. 6458, Reg. 6458-

Regulations for the disclosure of information on the sale and distribution of


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Notes:

The regulation is reproduced in full in Appendix A

Despite being reversed, the district court will learn nothing it did not alreadyknow about the First Amendment from the majority opinion

textbooks appears at the top of each page in the original document.

116 The following information:Copyright 2004 West, a Thomson business. No

claim to original U.S. Govt. worksappears at the end of each page in the

original document.

117 They were omitted for formatting and space reasons.

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Documents

ASOCIACIÓN DE EDUCACIÓN PRIVADA DE PUERTO RICO, INC. PUERTO RICO INNOVATIVES EDUCATION SERVICES, INC., D/B/A COLEGIO TOMÁS ALVA EDISON CORPORACIÓN EDUCATIVA RAMÓN BARQUÍN, D/B/A